No. 15,541 | Neb. | Feb 20, 1909
In December, 1893, Robert W. Sipes and his wife, Elvira, purchased the southwest quarter of section 20, township 3, range 14, in Franklin county, with the proceeds of other lands owned by them jointly. The land was purchased from Salvador Hayes, and he conveyed the north 80 acres to Mrs. Sipes and the south 80 acres to her husband, each taking title to a separate 80 acres. The house, barn, granary, well and cistern were located on the north 80 acres to which the wife held title. The south 80 acres was the better land, and all, or nearly all, in a state of cultivation. Sipes and his family moved onto the land in March, 1894, occupying the house and making use of the buildings and other improvements upon the north 80 acres. The south 80 acres was farmed in connection with the wife’s land, and was the most productive, portions of the north 80 acres being quite rough, and about 30 acres thereof used as a pasture.
Sipes departed this life November 16, 1894, leaving as his heirs, his wife, Elvira, who has since intermarried and is now known as Elvira G-. Whitmore, Ada B. Sipes, a minor daughter born of their marriage, also Laura Mote, Etta Blemler, Ida S. Smith and Luella Wright, daughters of Sipes by a former marriage. The plaintiffs Hugh and Glen Wright are children of Luella Wright, whose death occurred since that of her father. Sipes died intestate, and his widow was appointed administratrix of the estate, but after serving a year or more she resigned, going to the state of Illinois, and George E. Shepard was appointed administrator. Final settlement of the estate was delayed in consequence of foreclosure proceedings, which finally terminated in this court (Orient Ins. Co. v. Hayes, 61 Neb. 173" court="Neb." date_filed="1901-01-23" href="https://app.midpage.ai/document/orient-insurance-v-hayes-6653570?utm_source=webapp" opinion_id="6653570">61 Neb. 173), but the final report and discharge of the administrator appears to have taken place in 1901. During the course of the administration Shepard applied to the district court for license to sell the south half of
It is conceded that the rights of the heirs of one who dies in possession of a homestead take precedence of the creditors, and that the sale of a homestead property for the payment of debts of the deceased is void. Tindall v. Peterson, 71 Neb. 160" court="Neb." date_filed="1904-02-17" href="https://app.midpage.ai/document/tindall-v-peterson-6655677?utm_source=webapp" opinion_id="6655677">71 Neb. 160; Bixby v. Jewell, 72 Neb, 755; Holmes v. Mason, 80 Neb. 448" court="Neb." date_filed="1908-01-08" href="https://app.midpage.ai/document/holmes-v-mason-6657768?utm_source=webapp" opinion_id="6657768">80 Neb. 448.
The principal contention between the parties arises from the fact that Sipes and his family lived upon the north 80 acres to which the wife held title, that there were no buildings or improvements of any kind on the south 80 acres, except that the land had been broken and cultivated, and the defendants contend that by living upon the north 80 acres and using the pasture, the buildings and other appurtenances, Sipes had selected his
There is another view of the case which we also think quite decisive of the rights of the parties. The defendants have pleaded and assert that the plaintiffs are estopped from claiming any interest in the land of their ancestor because of having received and retained a part of the price for which it was sold. Due notice of the application to sell was given to all parties. The-personal property belonging to the estate was wholly insufficient to pay the debts and the widow’s allowance; Any sum remaining in the hands of the administrator when his final report was made was money derived from the sale of this land. With full knowledge of these facts the adult plaintiffs and the mother of the minor plaintiffs accepted from the administrator their distributive share of this money. Can they take their distributive share of the money arising from the sale of the land, and, while holding the same, ask to have the sale set aside and title to the land decreed in them? The legal principle involved was before the supreme court of Iowa in Pursley v. Hays, 17 Iowa 310" court="Iowa" date_filed="1864-10-22" href="https://app.midpage.ai/document/pursley-v-hays-7093102?utm_source=webapp" opinion_id="7093102">17 Ia. 310, and
We recommend an affirmance of the decree appealed from.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.